September 29, 2006

Beyond A Reasonable Doubt, The Rape/Consent Spectrum, And Restorative Justice

In my previous post, I argued that feminist reforms to the text of rape laws won’t, by themselves, lead to large differences in how rape is treated by the justice system. This is because the people who make the justice system happen will resist changes they believe are wrong.

There’s another limitation of the criminal justice system for addressing rape: The law requires – and should require – an offender to be proved guilty “beyond a reasonable doubt” before punishing him (or her) for any crime, including rape. This is not something I want to change.

However, a significant number of rapists are friends, boyfriends or spouses of their victims. These rapes often happen without any physical evidence to distinguish rape from consent, leaving the jury (or judge) with the task of deciding guilt or innocence based on the competing words of the accused and the complainant. If a rapist is a convincing liar, then even a very feminist jury may feel that he is not guilty “beyond a reasonable doubt,” and so will not convict.

Also, although the law has to consider rape a bright line – either an act was legally rape, or it wasn’t – in real life rape is better described as a spectrum. Consider this post by Biting Beaver, in which she describes a fifteen year old girl out on a date:

She says “No” again; he withdraws ALL affection, maybe even scooting to the end of the couch. He seems sullen and frustrated. He may even argue with her, “What’s the big deal?” he asks, “Why are you being a tease?” he says accusatorily. She begins to doubt herself and feels guilt about her actions. She apologizes to him, he kisses her again and soon he’s at her zipper once more. She flinches and sighs heavily, “I don’t know if I’m ready” she says plaintively, “What?” he asks her; “Don’t you love me?”

The girl bites her bottom lip, in a flash of anger and frustration she stands up to leave. He grabs her arm, “Oh baby, I’m sorry, I didn’t mean to make you mad” he says. She looks at him again and quickly it goes through her mind that she doesn’t really know where she’d go anyway. She lied to her parents; they think she’s over at a friend’s house. She has no car, how is she going to get anywhere? She can’t tell her parents and she doesn’t want to try to call her girlfriend who may or may not have a car. She knows that she’ll just make her boyfriend angry at her even if she DID do that. What if he kicks her out? She lied to be there and if she goes back home she’ll get in trouble for lying. In a flash she decides to sit back down.

An hour later, after more approach and retreat and more pushing his hand away, she gives in.

She goes home the next day, troubled, depressed, and unable to concentrate. She has been raped and her emotions and reactions are the same as any other rape victim, but she has no recourse.

Even many feminists, me included, would hesitate to describe the situation Biting Beaver describes as “rape” (although I wouldn’t hesitate to describe the way the boy in her example acts as disgusting, wrong, and worthy of punishment). I think this is partly because most people – including most feminists – think of rape as an either/or, black-or-white question. As Biting Beaver argues, rape is more accurately seen as the end of a spectrum. Here’s an image of the spectrum, adapted from this graphic which was created by Soopermouse.

At the black end of the spectrum is a perfect lack of consent, in which the victim lacked all agency; at the red end is fully consensual sex. In between we find cases such as the ones Biting Beaver describes, in which coercion and pressure is unfairly used to make someone “consent” to sex. Instead of asking “was this rape or not?,” the question Biting Beaver’s post brings up is “were there rape-like elements to this encounter? Were there degrees of unfair coercion and pressure?”

But our legal system is not set up to recognize a spectrum of consent; because courts and juries have a need for certainty, laws are written to create bright lines and black-and-white contrasts. The situation that Biting Beaver describes is a terrible injustice, but it’s one that the courts may not ever be able to address. But just because something can’t be addressed in a courtroom doesn’t mean that it isn’t reprehensible; nor does it mean that no injustice has been done.

Mary Koss, an academic and feminist activist who has spent her career studying rape, in recent years has been working on “restorative justice” as a means of providing justice to victims of sexual assault and rape. Here’s part of a brochure for Restore, a program Koss helped create that specializes in restorative justice for sexual offenses:

Restorative justice is not perfect justice; but in many cases restorative justice may be more useful for victims. This would include cases that the regular courts cannot prosecute, either because they’re too distant from the “perfect lack of consent” end of the spectrum, or because they’re “she said / he said” cases that are unlikely to be resolved in an adversarial justice system. It might also include cases that the regular justice system might be able to address, but without bringing as much satisfaction to the victim as restorative justice can.

Discussing restorative justice in greater detail is beyond the scope of this blog post, but interested readers can check out the Restore website for more information.

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Since restorative justice does not entertain the accused males’ legal right to due process and reasonable doubt, I cannot in good faith support it. As an advocate for better child sexual assaults laws I would be in favor of helping alleviate the undo stress court cases cause, but not at the expense of the accused’s rights and certainly not with the assumption that no woman would ever falsely accused a person of such a crime or that her story is wholly true.

Restorative justice seems more like an attempt to forego investigation and simply assume, without evidence or reason, that the accused is guilty without any chance of him proving his innocence. While the current system is imperfect, the moment a boy faces hard time for nagging a girl to have sex we trivialize real rape.

While the current system is imperfect, the moment a boy faces hard time for nagging a girl to have sex we trivialize real rape.

The moment we call it rape when a boy nags a girl into sex, we trivialise real rape. However I don’t agree that we shouldn’t give boys and girls a hard time when they engage in execrable behaviour that doesn’t rise to the level of rape.

Since restorative justice does not entertain the accused males’ legal right to due process and reasonable doubt, I cannot in good faith support it.

Restorative process is an add-on to the current justice system, not a replacement to it. In a system with restorative justice, the accused still has a right to due process and reasonable doubt; no one can force him to choose restorative process if he’d prefer to face a trial instead. But he can also choose an alternative to having a trial (just as he would if he chose to accept a plea bargain).

By your standards, a plea bargain “does not entertain the… legal right to due process and reasonable doubt.” Yet plea bargains are commonplace, and appear to be constitutional.

However I don’t agree that we shouldn’t give boys and girls a hard time when they engage in execrable behaviour that doesn’t rise to the level of rape.

bolded italics are mines

I did not use an article. I used the term “hard time,” meaning prison or jail time, not a reprimand. While I agree with the latter, the former would be a ridiculous response, especially if only applied to the afore mentioned senario.

In a system with restorative justice, the accused still has a right to due process and reasonable doubt; no one can force him to choose restorative process if he’d prefer to face a trial instead.

By that standard, there have never been people who have been forced into plea bargains or to sign confessions.

All unnecessary antagonism aside, if I am mistaken that restorative justice does not begin with the determination the accused is guilty (i.e. rape did occur), could you direct me to where in the link you provided that issue is discussed?

It is not rape because she consented. Similar situations occur daily in courtrooms where one boy pressured another into the committing an act. Even in instances where threats of violence are used, courts typically hold the pressured boy cupable because he had the choice not perform that act. The same is true in this case.

“The moment we call it rape when a boy nags a girl into sex, we trivialise real rape.”

Why so? In this example she clearly doesn’t want to have sex with him, refuses him multiple times, and he has her in a situation where she has little choice but to submit. What about this isn’t rape?

I didn’t say anything about this example, which goes beyond merely nagging her into sex. For a start, he engages in sexual contact which is clearly non-consensual. Nor is it clear what “she gives in” means.

The situation described – with genders reversed – is almost identical to the circumstances in which I technically lost my virginity. The main differences is that there was absolutely no obstacle to my leaving, I just chose not to. And I held out for more than an hour. Oh, yeah, and there was alcohol involved. She was plastered, I was merely tipsy. Like the girl in the scenario, I was groped in the face of my clear non-consent. In the end, I consented, and we engaged in a squalid little attempted fuck in which I could barely get it up, which, combined with my total inexperience, meant that I barely got it in. It was about as technical a loss of virginity as it is possible to have.

I left the next day feeling utterly wretched, headed off the the STD clinic for a check-up, my head ringing with the sobering thought that my uncooperative dick had been smarter than I had.

Was I raped? Definitely not: I consented. Was I sexually assaulted? In strict definitional terms, yes. I was groped at a time when I was clearly non-consenting. Functionally, however, the entire incident was an obnoxious, clumsy, but ultimately successful attempt to seduce me, and “sexual assault” is simply the wrong lens through which to view it.

For what it’s worth, juries wrestle with applying “bright line” legal tests to hazy facts all the time.

Consider Theodore Dreiser’s An American Tragedy: Clyde plans to kill his pregnant girlfriend Roberta by taking her boating in a tippy canoe, punching her and throwing her overboard, then feigning a boating accident. But when they’re out in the boat, he’s paralyzed by fear. Roberta asks what’s wrong, and when he won’t answer she goes to take his hand. Convulsed with conflicting emotion, he pushes her back. She screams; he rises to catch her and keep her from falling. The boat capsizes, dumping them both out and striking her in the head. She cries for help; he’s again paralyzed with conflicting emotions. She drowns.

Murder? Manslaughter? Accident + simple failure to aid (which, in common law, is no crime)? Everything looks neater in a law school outline than in the real world.

***By that standard, there have never been people who have been forced into plea bargains or to sign confessions.***

Toysoldier, can you specifically define what the word “forced” in this sentence means to you?

It is the same definition you used in your sentence.

You were the first one to use the word “forced” in this thread.

Let me clarify my question. When you said “forced,” did you mean someone being “forced” to accept a plea bargain because he fears being found guilty should he go to trial? Or did you mean someone being “forced” to accept a plea bargain through some sort of torture or unfair pressure tactics, such as being beaten by the cops?

Also, are you saying that plea bargains and confessions should never be allowed?

The strawman is unnecessary.

There was no strawman.

Due process is addressed with restorative justice exactly the same way due process is addressed with plea bargains. If you’re against the way due process is handled with restorative justice, then logically you should also oppose how due process is handled with plea bargaining; or you should be able to argue that there’s an important logical distinction between plea bargains and restorative justice that justifies a double-standard.

Amp, you introduced the term ‘force’: In a system with restorative justice, the accused still has a right to due process and reasonable doubt; no one can force him to choose restorative process if he’d prefer to face a trial instead.

The latter statement implies no one has ever accepted a plea bargain or confessed to a crime he did not commit as a result of force. I am unsure if this is your actual position or if you are taking an antagonistic stance because I questioned restorative justice. Could you clarify this please?

Due process is addressed with restorative justice exactly the same way due process is addressed with plea bargains.

Then please provide the information I requested. If due process is addressed, I see no reason why you would not present it, especially to someone who is doubtful of that. Also, would you please explain how plea bargains are indifferent from restorative justice, specifically the legal processes involved and how the accused may gain restitution if the state misrepresents facts or the accusations later prove to be false?

…or you should be able to argue that there’s an important logical distinction between plea bargains and restorative justice that justifies a double-standard.

Would you please clarify what double standard you are speaking? My concern is on what basis should the boy described in Biting Beaver’s example be subjected to restorative justice considering he has violated no laws? Is that not a clear violation of the boy’s constitutional rights (perhaps more so since he has not committed any illegal offence)?

For those who say BB’s example gives the girl an easy out by calling her parents, you must have missed this part of the example: “She can’t tell her parents and she doesn’t want to try to call her girlfriend who may or may not have a car. She knows that she’ll just make her boyfriend angry at her even if she DID do that.”

Also if you reread this scenario, you’ll notice that the boyfriend has grabbed her arm. Yes, that’s right, he’s physically restraining her when she’s thinking of calling for help. If that’s his nice, I wouldn’t want to see his anger.

For those who say BB’s example gives the girl an easy out by calling her parents, you must have missed this part of the example: “She can’t tell her parents and she doesn’t want to try to call her girlfriend who may or may not have a car. She knows that she’ll just make her boyfriend angry at her even if she DID do that.”

Read the whole paragraph. She doesn’t try to leave or call for help because of the external consequences of leaving, and because “she knows she’ll make him angry”

If that’s his nice, I wouldn’t want to see his anger.

We’ve already seen his anger. It manifest itself in emotionally-blackmailing acting-out, not in violence. She’s afraid of being kicked out, not of being forcibly kept in or subject to violence.

As for the arm-grab. The action as I picture it is not one of restraint, but of interrupting the action of leaving. Once interrupted, his emotionally blackmailing entreaty, plus the externalities, persuade her to remain.

At least, that’s how I read it. I’m still not clear what “gives in” means.

“For those who say BB’s example gives the girl an easy out by calling her parents, you must have missed this part of the example”

And it appears that you missed this part: “She lied to be there and if she goes back home she’ll get in trouble for lying.” This strongly implies that she regarded having sex with him as less horrific than getting in trouble with mommy and if you call this rape, then you are saying that rape is less horrific than having mommy get mad at you.

You also didn’t note this comment in spite of the fact that you quoted it: “she doesn’t want to try to call her girlfriend who may or may not have a car.” So the girlfriend MAY have had a car but she didn’t WANT to call her. Why? Had she used up all her free minutes and didn’t want to spend 30 cents?

The writer doesn’t say but the writer was confused. Note these weird uncertainties: “maybe even scooting to the end of the couch. He may even argue with her.” So did he scoot to the end of the couch? Did he argue with her? The writer wants to clarify subtle issues but leaves trivial and not-so-trivial uncertainties in her example.

It’s interesting to note, too, the number of people who have observed that he is “emotionally blackmailing” her. You can only blackmail someone by threatening to take away something that is rightfully theirs. The implication is that she’s entitled to his devotion and affections on her terms. He’s merely an object. The writer certainly treats him that way.

Daran: “She’s afraid of being kicked out, not of being forcibly kept in or subject to violence.”

Actually, that’s unknown. How do you know that when he grabbed her arm he isn’t leaving bruises? You are painting his actions in the best possible light while painting her actions in the worst possible light. His anger which she fears might involve more physical restraint or physical assault. She may not even know what he’s capable of if she rejects his plans for the evening. He’s got her cornered figurately and he has her isolated physically and people are letting him off the hook because she doesn’t know how to get out of that corner. Not once in the example does he respect her desire not to proceed. She said no and he refused to accept it.

And it appears that you missed this part: “She lied to be there and if she goes back home she’ll get in trouble for lying.” This strongly implies that she regarded having sex with him as less horrific than getting in trouble with mommy and if you call this rape, then you are saying that rape is less horrific than having mommy get mad at you.

Wrong on both counts. That detail is something the boy knew and used to his advantage. She wanted to get out of that situation and didn’t know how. She didn’t know if she’d be allowed to call for help and you don’t know it either. By choosing to trust her boyfriend’s reassurances, you are saying she choose sex, but those two are not the same.

The boy knew exactly how to let her out of the situation the moment she said “no.” He made the choice to not take her to her friend’s house. He made the decision to keep pushing until he got what he wanted.

Marcella: “He made the decision to keep pushing until he got what he wanted.”

So?

How high in your personal ethical canon is the rule that you must not push to get what you want? Must one not push to get good grades? If I think my friend would come to share my passion for rock climbing must I not push him to give it a try?

Or is it just sex? This whole thing reeks of Christian sin. Somehow I don’t think we’d be having this discussion if he pressured her into a game of Gin Rummy.

Look at the writer’s frame of reference. On her board she says, “most heteronormative sex falls into the rape continuum.” In other words, most sex between heterosexuals is criminal (or, at least, a sin). According to the writer, sex can only be consensual if there is first-ask consent and there is a perfect power balance between the partners. In other words, never. May I infer that power balances are always perfect in homosexual relationships?

The writer states that women must get to define rape and proceeds to not define rape. Why not? It occurs to me that as soon as she does that she imposes limitations on herself. In defining what is rape you are also defining what is not. As long as she keeps it vague, the possibilities are endless. She certainly accomplished vagueness (“the boyfriend MAY have scooted to the end of the couch”).

The writer does far more to obfuscate than illuminate the trite notion that power corrupts. My guess is that was her intent and that what she really wanted in this writing was to enhance her status in her social circle. Here on the back-of-the-bus board there is, at least, some criticism of her writing. On the main board, however, the girl is being called a “survivor.” The writer pushed and got what she wanted.

Marcella: “You honestly see no difference between a boy pushing himself to get good grades and BB’s scenario?”

Marcella, in these situations I’m always torn between not wanting to dominate a board discussion and ignoring a direct question. Both seem rude.

So, to make this brief, I did not make any assertions; I just asked questions. I asked you to state a moral rule under which you made an assertion; that is, that the boy was wrong to “push until he got what he wanted.” As far as I’m concerned, by turning it around you are being every bit as obfuscatory as the writer is.

I understand Marcella’s frustration with you, otterick. You’re being obtuse.

It’s obvious that what distingushes the boy’s behaviour in the BB scenario and the same boy pushing himself to get good grades is that in the BB scenario the boy is riding roughshod over another person.

Not so sure the scenarios are that far apart, conceptually anyway. Most of my college credits came from classes that graded on a curve. If I did everything I could for the best grade, I’d be pushing other people down, sure as houses. My relentless quest for As (I wanted a 4.0) almost certainly meant that some students who (lacking me in their class) would have gotten low As instead got middling Bs.

Unwanted sex is probably significantly more distressing to most folks than an unexpected and unfair B – but I can think of a few exceptions. But there aren’t many human activities that take place in a vacuum. Striving for what you want, in most cases, is going to involve “riding roughshod” over others.

There are costs to all philosophical approaches. Societies which encourage people to go out and get what they want have to deal with fallout from people who got hurt in the competition, as well as with lost opportunities for cooperation. Societies that encourage sharing and cooperation have to deal with lower rates of innovation and fewer improvements to economic efficiency.

Or is it just sex? This whole thing reeks of Christian sin. Somehow I don’t think we’d be having this discussion if he pressured her into a game of Gin Rummy.

The sin here is that, for his own selfish gratification, he manipulated another person in a way which was harmful to her. It’s not so much what she was pressured into, but how she was pressured, and what the consequences of that were.

Let me give you another example, a true one. A couple of years ago, I was a member of a band. Also in that band was a woman who I found very attractive. She seemed very friendly and we got along, and she didn’t seem to be attached to anyone. She asked for drumming tuition and I used to give it her. After a while, I noticed that she seemed to like me a little more than I was used to. It was nothing overt, just the way her face would light up, and she’d smile when she saw me.

I tend to be slow on the uptake about such matters, and distrustful of my own judgement, so I hung back. But it seemed genuine, so after a few months (told you I’m slow) I thought I’d try to make a move. I spoke to my best (male) friend about it first, and he warned me off her, but he couldn’t give me a reason why, so I wasn’t persuaded. Eventually I called her up and suggested going to the cinema together. (That’s “the movies” to you guys across the water who don’t speak English.)

I got rebuffed. Not in a nasty way, but in an unmistakable way. No way was she going to the cinema with me, and it wasn’t because she didn’t want to watch the film. She went to see it anyway. By herself.

So I gritted my teeth, and stood back, and tried to figure out where I’d gone wrong. And I noticed after a while that sometimes her face would light up, and she’d smile at other people too – whenever she wanted something from them.

It was the drumming tuition. That was all she had been after.

And then I thought about all I’d done for her benefit – given up a hell of a lot of my time to teach her stuff – and what she’d done for me – basically nothing – and I felt pretty damn used.

Drumming lessons isn’t that far from Rummy, is it? What she did wasn’t rape. It wasn’t remotely close to being anything criminal. What it was, is a pretty damn shitty way of treating another person.

Look at the writer’s frame of reference. On her board she says, “most heteronormative sex falls into the rape continuum.” In other words, most sex between heterosexuals is criminal (or, at least, a sin). According to the writer, sex can only be consensual if there is first-ask consent and there is a perfect power balance between the partners. In other words, never. May I infer that power balances are always perfect in homosexual relationships?

You can infer what you like. Inventing another person’s arguments in order to refute them is known as the “Strawman fallacy”, and we don’t usually pay much attention to victories over strawmen.

(I would add that I don’t generally agree with BB’s analysis, but I’m not debating with her. I’m debating with you and Marcella, so it’s your and her arguments that are the ones at issue here.)

Daran: “Drumming lessons isn’t that far from Rummy, is it? What she did wasn’t rape. It wasn’t remotely close to being anything criminal. What it was, is a pretty damn shitty way of treating another person.”

Your story is remarkably close to what recently happened to my son who is 18 and fell in love for the first time. I very much feel his pain and, so, it’s easy to feel yours.

This comment was telling: “after a few months I thought I’d try to make a move.” So did my son. The problem is that after a few months you’ve created your own mental story line and very likely an elaborate one at that. The deceit soup was only made 10% of her ingredients. It’s like I told my son, follow your heart and GO (just as a personal aside for what it’s worth).

The difference between your story and the writer’s is that there was no deceit in the writer’s. Some allege that there was coercion but there are holes in the story you can drive a truck through. So many that to conclude that he “rode roughshod” you have to WANT to so conclude and then plug the holes accordingly.

Daran: “You can infer what you like. Inventing another person’s arguments in order to refute them is known as the “Strawman fallacy”, and we don’t usually pay much attention to victories over strawmen.”

If you read her blog her demands for power balances are so great that it’s implausible that such balances could ever be achieved in any relationship. At least, that is what I infer in good faith. Yet, she only makes those demands with respect to heterosexual relationships. That I don’t have to infer. Thus my question was not a strawman. It was, however, unnecessary and snide and I retract it.

Daran: “She’s afraid of being kicked out, not of being forcibly kept in or subject to violence.”

Marcella Chester said:Actually, that’s unknown. How do you know that when he grabbed her arm he isn’t leaving bruises? You are painting his actions in the best possible light while painting her actions in the worst possible light. His anger which she fears might involve more physical restraint or physical assault. She may not even know what he’s capable of if she rejects his plans for the evening.

Since BB’s post doesn’t mention any bruises, we cannot consider them in this scenario. That would be a different scenario. Likewise, the post doesn’t mention a threat of violence on his part, or a fear of violence on her part. If BB wanted us to consider violence, or the threat of it as part of the scenario, I am sure she would have made it explicit. Certainly there are scenarios where those things are present, and we should think about whether or not those scenarios are rape, but those are not the scenario currently under consideration.

Based on the description we are given, the primary worries of the girl are:

What if he kicks her out? She lied to be there and if she goes back home she’ll get in trouble for lying.

Her fears are not “what he’s capable of if she rejects his plants for the evening,” but rather being kicked out, and getting caught lying to her parents. As otterick says, she made a choice that getting in trouble with her parents or getting kicked out by her boyfriend were worse than having sex with him. If the boyfriend wants to kick her out, that is his right, because it’s his house.

That being said, I do believe that the guy’s action were wrong, and I don’t understand the comparison of pushing for sex with pushing for grades. In classes with a curve, it isn’t unethical to trample other people. They don’t have a right to higher grades than the teacher decides based on the curve, and students in the class accept the grading conditions by taking the class. In the case of pushing for sex, behavior like the hypothetical boyfriend’s is clearly unethical, because he is repeatedly trying to get someone to have sex with him when she clearly doesn’t want to.

Because they are civil remedies, TROs and sexual harassment suits remove police and prosecutors and grand juries from the parade of public officials who must be convinced, and give survivors more control of how cases are handled. Also, because they are civil rather than criminal remedies, they require proof by a preponderance of the evidence, rather than proof beyond a reasonable doubt.

Neither the temporary restraining order (an ancient remedy that pre-dates legal status non-adult and married women as something other than chattle), nor gender discrimination laws, were invented with sexually aggresive behavior in mind. But, they have become popular in this role, and the courts have allowed the law to develop in this manner, because they provide intermediate remedies. The vast majority of temporary restraining orders now involve acquintances in failed sexually oriented relationships. A significant share of sex discrimination claims are sexual harassment claims.

Neither is a perfect remedy.

TROs are rarely based on non-consentual sex per se, although they provide a backstop on the kinds of pressure which can be applied by a partner inclined to attempt to engage in non-consentual sexual, or who will actually do so. They are end relationships in which non-consentual sex is likely going forward, and indirectly encourage various kinds of stalking and obssessive and controlling behavior.

Sexual harassment laws, while limited to an employment or educational context, use inferences about a person’s power to be non-physically coercive to sanction improper pressure with or without sex. They subject sexually oriented interaction with or without sex in certain circumstances to heightened scrutiny. The existence of these laws also discourages aggresive sexual behavior in the workplace generally.

No fault divorce, which is customarily accompanied by a limited restraining order automatically, similarly provides survivors of non-consensual sex in the context of a marriage with a unilateral forward looking remedy in cases of sexual abuse within the context of a marriage. While it does not have the sanctions of fault divorce, it also provides a unilateral, survivor controlled, nearly instant remedy that will typically leave a departing survivor spouse with at least temporary economic support. And, child custody proceedings can provide a venue in which forward looking remedies for questionable conduct that may be heading towards incest (or already reached that point) can be invoked without the same levels of proof required in a criminal trial.

Another popular forum for “simple rape” cases are educational institution’s disciplinary systems, where remedies similar to the restorative justice one described above are available.

I don’t normally pick up on people’s typos – I make enough of them myself – but the mental picture evoked of her rejecting his plants is just too delicious to pass up. Where did this seduction/rape take place anyway? The little shop of horrors?

I entirely agree with the first part of Aegis’s analysis, so let me pick up on his final two paragraphs:

Her fears are not “what he’s capable of if she rejects his plants for the evening,” but rather being kicked out, and getting caught lying to her parents. As otterick says, she made a choice that getting in trouble with her parents or getting kicked out by her boyfriend were worse than having sex with him.

The latter phrase, in so far as it might be read as implying consensual sex, is question-begging. Was it rape? We haven’t decided that yet. The real force of otterick’s argument is that it presents us with a dilemma: Either we must accept that the girl’s experience is not rape, or we must accept that rape is a relatively trivial matter. I don’t accept either, that is to say, I think the scenario presented is rape, and is not trivial. But I’d rather take the dilemma-bull by the horns, than evade it, as Marcella does, by redefining the scenario.

But that’s the subject of another post.

If the boyfriend wants to kick her out, that is his right, because it’s his house.

It’s still a shitty thing to do.

That being said, I do believe that the guy’s action were wrong,…

Dropping litter is wrong. Fiddling your expense account is wrong. What that guy did was reprehensible.

and I don’t understand the comparison of pushing for sex with pushing for grades.

Neither do I, but the thinking of conservatives is a bit of a mystery to me. It’s probably justified by 9/11.

Daran: “Neither do I, but the thinking of conservatives is a bit of a mystery to me. It’s probably justified by 9/11.”

These are two of the oddest comments I’ve heard in awhile. To clarify, I did not equate pushing for sex with pushing for grades. Marcella made the comment that “he pushed until he got what he wanted” as if pushing for what you want is an evil. I was just seeking clarification. Obviously I didn’t do it well as it’s lead to confusion.

Daran: “I think the scenario presented is rape, and is not trivial. But I’d rather take the dilemma-bull by the horns, than evade it, as Marcella does, by redefining the scenario. But that’s the subject of another post.”

I don’t accept either, that is to say, I think the scenario presented is rape, and is not trivial.

Dropping litter is wrong. Fiddling your expense account is wrong. What that guy did was reprehensible.

I certainly agree the boy’s actions are reprehensible, but I cannot see how his actions rise to the level of rape. It does trivialize real rape when pressuring suddenly constitutes physical force. While I agree the former is often used in a forceful manner, the fact remains the girl still chose to remain and have sex without any threat of violence. The only tangible threat is her removal from his house and his emotional rejection, neither of which–despite our view of them–is a violation of any of her rights.

If this does rise to the level of rape, how much pressuring is acceptable until it becomes rape? I think it is necessary to make that distinction since there are instances when both individuals feign disinterest and wait for the other to “push for what they want.”

# Daran Says:
…The real force of otterick’s argument is that it presents us with a dilemma: Either we must accept that the girl’s experience is not rape, or we must accept that rape is a relatively trivial matter. I don’t accept either, that is to say, I think the scenario presented is rape, and is not trivial. But I’d rather take the dilemma-bull by the horns, than evade it, as Marcella does, by redefining the scenario.

“Similar situations occur daily in courtrooms where one boy pressured another into the committing an act. Even in instances where threats of violence are used, courts typically hold the pressured boy cupable because he had the choice not perform that act. The same is true in this case.”

I see. It’s not rape because his coercive tactics worked exactly as he hoped they would. Well that’s lucky. By this logic (if it can be called such) if I stick a gun in your face and demand your wallet, it’s not really theft because you could have chosen to not give it me, but you did. See, cuz, it doesn’t matter what I do to get whay I want all that matters is that you gave in.

All this reeks of “no really means yes”. It makes me a little ill that anyone would try to claim this wasn’t rape. And frankly, makes me wonder if the reason for dismissing the label of rape is because that would put any boy who coerced a woman into sex in the rapist category, and that hits a little too close to home for some.

From the text: An hour later, after more approach and retreat and more pushing his hand away, she gives in.* *bolds are mines.

Unless we redefine the meaning of the phrase “to give in,” it does means “to consent.”

By this logic (if it can be called such) if I stick a gun in your face and demand your wallet, it’s not really theft because you could have chosen to not give it me, but you did.

Your analogy is off. Yours is a threat of violence and potential death. The boy’s was a threat of rejection and removal of the girl from his home. The two are not the same.

And frankly, makes me wonder if the reason for dismissing the label of rape is because that would put any boy who coerced a woman into sex in the rapist category, and that hits a little too close to home for some.

That is a disgusting ad hom. It is ridiculously absurd and insulting to imply that anyone disagreeing with your position is a rapist or is trying to cover up past vile acts. But I agree–as someone who repeatedly had nonconsensual sex as a child–that your above implication does hit a little too close to home.

Unless we redefine the meaning of the phrase “to give in,” it does means “to consent.”

Um, no it doesn’t. According to dictionary.reference.com, “consent means “to permit, approve, or agree; comply or yield”. Scroll down the same page, to the American Heritage Dictionary’s “To give assent, as to the proposal of another; agree”. Scroll down further to the wordnet definition: “give an affirmative reply to; respond favorably to”. Merriam Webster defines it as “to give assent or approval : AGREE”.

To take “give in” as meaning consent by definition is to take a medieval view of rape because anything short of a fight to the death is “giving in”.

It’s certainly possible to construe “give in” to mean consent. There’s enough overlap – just – between the definitions to support this construction. But that would be an interpretation – it requires us to make certain factual assumptions which are not given or implied in the scenario – and it’s an interpretation which I feel bends the scenario in much the same way, albeit opposite direction, as Marcella’s did.

And frankly, makes me wonder if the reason for dismissing the label of rape is because that would put any boy who coerced a woman into sex in the rapist category, and that hits a little too close to home for some.

(toysoldier’s italics)

toysoldier:

That is a disgusting ad hom.

I agree. Sadly it’s one we see all too often in the feminist blogosphere.

I don’t know how much weight my views carry with the co-dictators and other bloggers here, but this is definitely not the kind of behaviour I want to see in any project I’m involved with. Lya, will you kindly remember that you are a guest here. Please treat the other guests with the same respect you would expect to be treated yourself.

Lya: “if I stick a gun in your face and demand your wallet, it’s not really theft because you could have chosen to not give it me, but you did.”

No, that would be theft. If, however, I gave you my wallet because you threatened to call me a doo doo head, then you should gather your friends and let the wine flow (using someone else’s Mastercard – priceless!).

It is that grey area between the gun and the doo doo head that is at stake here.

So does the American Heritage Dictionary. From Dictionary.reference.com (rather ironically): To consent to engage (oneself) in sexual intercourse with a man.

While I agree the words are not exactly the same, the implication of both is that one willfully yield’s (For instance, one gives in to God’s Will). Certainly giving in is hardly done without manipulation or coercion, but it is still a conscious decision. To equate a conscious decision with a forcible act does not make much logical sense, especially since it would not be an acceptable conclusion in any another situation I am aware of.

So does the American Heritage Dictionary. From Dictionary.reference.com (rather ironically): To consent to engage (oneself) in sexual intercourse with a man.

You are mistaken. It is a definition of “give”, not “give in”. It is in this sense that a woman “gives” herself to a man. This is not “giving in”.

While I agree the words are not exactly the same, the implication of both is that one willfully yield’s (For instance, one gives in to God’s Will). Certainly giving in is hardly done without manipulation or coercion, but it is still a conscious decision. To equate a conscious decision with a forcible act does not make much logical sense, especially since it would not be an acceptable conclusion in any another situation I am aware of.

I freely admit that I do not understand what “give in to God” means, but it doesn’t seem apposite here.

Responses to forcible acts are usually concious: The bank teller who decides to hand over cash to an armed robber instead of risking her life in order to resist him is concious of doing so. So it would appear that “concious decision” and “forcible act” are not mutually contradictory.

Consider a scenario in which a woman is violently assualted in a rape attack. Initially she resists, but after being beaten for a while she ceases her resistence. Has she consented? Has she given in?

If your answer to the first question is yes, then this is the medieval attitude I refered to later. If your answer to the second question is no, then I suggest it is you who are redefining “give in”. The phrase, as I understand it is applicable in that situation, and the dictionaries appear to agree with me.

If your answers are “no” to the first, and “yes” to the second, then you must conceed that “give up” and “consent” have different meanings in the face of violence. In this case can you explain why they must have the same meaning in the absence of violence?

So it would appear that “concious decision” and “forcible act” are not mutually ucontradictory.

I did not say they were. I said that a conscious decision does not equal a forcible act. The comparison you make is akin to saying being screamed at is the same as being beaten nearly to death. Accordingly, the implication is that we should treat the screamer in exactly same fashion as we would the assaulter and assume that the act of being screamed at is exactly the same as being physically restrained from leaving. Am I mistaken?

If your answers are “no” to the first, and “yes” to the second, then you must conceed that “give up” and “consent” have different meanings in the face of violence.

Since both terms can imply that she yielded, it depends on the intent and the context. Considering the multitudes of meanings words can have, it seems odd to lock down only these two as having specific, wholly nrelated meanings. And given that if the genders were reversed in either your latter example or Biting Beaver’s scenario the phrase “gave in” would be interpreted as “consented,” I do not think I am fabricating that these words can be and are used interchangeably. For example: The situation described – with genders reversed – is almost identical to the circumstances in which I technically lost my virginity…Was I raped? Definitely not: I consented.* Was I sexually assaulted? In strict definitional terms, yes… Functionally, however, the entire incident was an obnoxious, clumsy, but ultimately successful attempt to seduce me, and “sexual assault” is simply the wrong lens through which to view it. *bolds are mines

Since the incidents are substantively the same, why is one consensual while the other is akin to forcible sexual assault? Is it the gender of the “victim?” Is it the circumstances surrounding the situation? Is it that you simply did not feel raped? At what point does it go from the realm of consent to rape? (Please pardon my using your experience as an example.)

Lya: “if I stick a gun in your face and demand your wallet, it’s not really theft because you could have chosen to not give it me, but you did.”

The crime in question is robbery, which is to “knowingly take anything of value from the person or presence of another by the use of force, threats or intimidation.” (under Colorado law, anyway, CRS 18-4-301.)

Interestingly, U.S. law has generally held that acts made under duress are invalid. British law, and international law involving sovereign states, is less generous. Those bodies of law more often uphold actions made under duress. British law, unlike U.S. law, also often does not recognize the defense of “choice of evils.”

I said that a conscious decision does not equal a forcible act. The comparison you make is akin to saying being screamed at is the same as being beaten nearly to death. Accordingly, the implication is that we should treat the screamer in exactly same fashion as we would the assaulter and assume that the act of being screamed at is exactly the same as being physically restrained from leaving. Am I mistaken?

Yes you are, in so far as you are construing my position. I don’t understand your point here, nor can I see why you are misunderstanding mine.

Since both terms can imply that she yielded, it depends on the intent and the context. Considering the multitudes of meanings words can have, it seems odd to lock down only these two as having specific, wholly nrelated meanings.

I did not say they were wholly unrelated. I said that there was overlap, and that it is possible to construe “gave up” to mean “consented” just as it is possible to interpret “grabbed her arm” to mean “restrained her from leaving”. I contend that these are not the natural interpretations given the context. As Aegis put it, these are different scenarios and we would come to different judgements about them.

Since “Agree” appears to be the key synonym given in the definitions, I looked it up in dictionary.reference.com. There, under “Synonyms”, it elaborates the key idea behind consent:

Consent, applying to rather important matters, conveys an active and positive idea; it implies making a definite decision to comply with someone’s expressed wish:

My emphasis.

This is what is missing from the scenario. It’s possible that she expressed an “active and positive idea” and made a “definite decision to comply”. It’s possible that the armgrab was an act of restraint. But there’s nothing in the scenario to suggest either of these, and everything to suggest otherwise.

So my interpretation is that she did not make “a definite decision to comply”. Rather she ceased to resist.

Therefore in my interpretation she did not consent. Therefore it was rape.

And given that if the genders were reversed in either your latter example or Biting Beavers scenario the phrase “gave in” would be interpreted as “consented,”

It would not be so interpretted by me. I did not factor in the particular genders in coming to my conclusion.

I do not think I am fabricating that these words can be and are used interchangeably.

Indeed they can be, and are so used. However, when I use the word “consent”, I have a very clear meaning in mind – one which in my opinion is the correct one when defining rape. Given the potential harm of the act, absent an “active and positive idea” expressing “a definite decision to comply”, a sex act should not be regarded as consensual.

For example: The situation described – with genders reversed – is almost identical to the circumstances in which I technically lost my virginity…Was I raped? Definitely not: I consented.* Was I sexually assaulted? In strict definitional terms, yes… Functionally, however, the entire incident was an obnoxious, clumsy, but ultimately successful attempt to seduce me, and “sexual assault” is simply the wrong lens through which to view it. *bolds are mines

Since the incidents are substantively the same, why is one consensual while the other is akin to forcible sexual assault? Is it the gender of the “victim?” Is it the circumstances surrounding the situation? Is it that you simply did not feel raped? At what point does it go from the realm of consent to rape? (Please pardon my using your experience as an example.)

I did not say they were “substantively the same”. It’s in the nature of things that they might appear to be similar at first glance, but significantly different upon closer inspection. When I said I consented, I meant that. I had an “active and positive idea”, which I expressed by participating in the act. In other words, I did my level best to fuck her, and it was only my uncooperative dick which prevented it.

So, on reflection, the BB scenario as I am interpretting it now is not “almost identical” to mine. It is superficially similar, but substantively different.

Daran: “There’s no “proof” of anyone’s actions, because this is only a hypothetical situation, and A and B don’t really exist.”

So, you’ve concluded that a nonexistent person has been raped. I thought that hypotheticals involved pretending that a scenario is real so we can better understand fine points and develop rules of general application. I’m pretty sure this wasn’t meant as a semantics game.

Daran: “But there’s nothing in the scenario to suggest either of these, and everything to suggest otherwise.”

Small wonder you’d conclude that since the writer imbued the girl with thoughts, feelings and circumstances. The boy, on the other hand, is portrayed as a monomaniacal testosterone-driven automaton. How hard would it be to fill in the boy’s character so that he becomes a real person? How about if we make him Daran? You seem like a decent guy.

So, let’s fill out Daran without contradicting the details of the story or doing so in the slightest bad faith. For example, I could say that he actually offered her a ride home without contradicting the story but that would be in bad faith; she wondered how she could get home which implies he didn’t make such an offer. However, apparently she never asked him which means he might very well have obliged if she had. That is an assumption that is consistent with the story and is made in good faith.

The story doesn’t say he knew of her dilemma with her parents and if she’s kept the situation with the boyfriend secret from her parents she might very well have the situation with her parent secret from her boyfriend.

In short, the boy doesn’t know of the girl’s immobility. This is you Daran. Had you known would you have given her a ride home? If yes, why do you believe the boy wouldn’t have?

We may reasonably assume from the story that these two are very young – maybe 15 or 16. They are quite possibly virgins. They are boyfriend and girlfriend so they’ve been together awhile.

Daran has long made it clear to her that he considers sex as a part of a complete relationship. She keeps saying “I’m not ready.” Daran is torn. He loves the girl, and always will, but he’s thinking more and more that there might be a girl out that he will love who will have sex with him.

Daran scoots to the end of the couch. The girl accuses him of emotionally blackmailing her and this angers Daran. In the first place he moved to the end of the couch because he’s becoming overly aroused and in the second place, her statement implies that she’s entitled to his affections entirely on her terms.

In a flash of anger and frustration she stands up to leave. He grabs her arm, “Oh baby, I’m sorry, I didn’t mean to make you mad” he says. He looks at her again and quickly it goes through his mind that she’s the one emotionally blackmailing him. He sheepishly returns to her end of the couch.

They roll on the couch and she gives in. To Daran it appears that she consented. He’s heard that girls take longer to get aroused so an hour seems normal. She looks a little scared but he’s very scared, too.

The next day Daran is troubled, depressed, and unable to concentrate. He pressured his girlfriend so that he could have 12 seconds of pleasure. Will she still love him? In optimistic moments he smiles and thinks that with a little practice the sex will get better and he and his girlfriend will grow closer than ever.

The situation doesn’t meet the legal definition of rape, so basically you are saying that the girl in question has to make up stuff for the cops, and has indeed decided to do so, jeopardizing the reputation and freedom of her long-term boyfriend, and possibly her own reputation too, if people are suspicious about the accuracy of her revised story.

Or, to ask: What has she told the cops?
AFAIK “I was raped, Daran did it” isn’t enough, the cops are going to want a detailed description. And it doesn’t seem to me that a detailed truthfull description would support a rape charge.

I don’t understand your point here, nor can I see why you are misunderstanding mine.

Specifically because your position appears to only be applicable to proving this girl was raped. If any of the variables are altered, it does not appear that you would accept a similar conclusion.

So my interpretation is that she did not make “a definite decision to comply”. Rather she ceased to resist.

In that case, if a person does not wish to work overtime and his boss persists in pressuring him until he gives in (i.e. ceases to resist), he has technically been enslaved, correct?

Indeed they can be, and are so used.

Then your above “definite decision to comply” criticism is moot.

However, when I use the word “consent”, I have a very clear meaning in mind – one which in my opinion is the correct one when defining rape.

That is the point. It is not that the act actually is rape. It is more that you think the act is rape depending on who it is done to and in context of the situation. To use this as a premise for imprisonment and punishment, to essentially have an act so broadly defined that if a person feels it was done to her someone will spend years in prison is a ludicrous position.

I had an “active and positive idea”, which I expressed by participating in the act. In other words, I did my level best to fuck her, and it was only my uncooperative dick which prevented it.

It was not stated in the example whether the girl actively participated or not, and again it is your decision that you were not raped. The position initially presented is pressured sex with willful compliance equals rape, regardless of the level of participation. Also, the participation angle is an odd criterion. If one actively goes along with an act that one cannot have been forced to do said act? That seems to contradict the point that coercive techniques equal forcible assault since one of the main goals of coercion is to gain active participation from the coerced.

Specifically because your position appears to only be applicable to proving this girl was raped. If any of the variables are altered, it does not appear that you would accept a similar conclusion.

Perhaps I should set out my reasoning in the form of a flowchart. For simplicity, I will assume all parties are capable of consenting.

1. Did an act of penetrative sex take place? If not then no rape. Else continue.
2. Did all the parties consent – defined as expressing “a positive idea” making “a definite decision” to engage in the particular sexual act at question. If not, then the non-consenting party(s) was raped. Else continue.
3. Was any of the parties subject to an unlawful act or threat. If not, then no rape. Else continue.
4. Would the threatened party(s) have consented without that threat. If not, then they were raped.

Under my interpretation of the BB scenario, the answers are

1. Yes.
2. No.
3. No.
4. N/A.

The “no” answer to 2 is dispositive.

In that case, if a person does not wish to work overtime and his boss persists in pressuring him until he gives in (i.e. ceases to resist), he has technically been enslaved, correct?

No, he “expresses a positive idea” by actually doing the work. Nor has the boss done, or threatened him with any unlawful act.

The key distinction here is that the employee does something, while there is nothing to indicate that the girl in the scenario does anything rather she is done to.

If she had said “OK, let’s do it”, then that would be consent. If she participated in the act, for example by kissing him back, or by actively touching him, then that would express consent. If she cooperated, for example by helping him undress her, that would express consent. If she just lay there like a wet fish, then that would not express consent.

As I have repeatedly indicated, the conjecture that she did any of these things does not contradict any of the facts given in the scenario, any more than the conjecture that he restrained her, or that she was in fear of physical violence contradicts the given facts. However, both suggestions go against the flow of the narrative, so I consider them to be different scenarios.

Indeed they can be, and are so used.

Then your above “definite decision to comply” criticism is moot.

Other people are vague and imprecise means I can’t be clear and precise?

That is the point. It is not that the act actually is rape. It is more that you think the act is rape depending on who it is done to and in context of the situation. To use this as a premise for imprisonment and punishment, to essentially have an act so broadly defined that if a person feels it was done to her someone will spend years in prison is a ludicrous position.

Indeed it is. It’s a good thing it isn’t my position.

Of course it depends upon the context. Consent is a communicative act, and communication depends upon context. But nothing in my analysis depends upon who it is done to. Nor does it depend upon how any person feels. These are total strawmen.

It was not stated in the example whether the girl actively participated or not,

Neither was it stated that she wasn’t restrained or put in fear of physical harm.

It was, however, very clearly stated that she was unwilling to have sex.

and again it is your decision that you were not raped.

If you honestly cannot tell the difference between trying one’s level best to fuck someone, and lying back like a wet fish, then I suggest that you’re incapable of judging whether something is rape or not.

The position initially presented is pressured sex with willful compliance equals rape, regardless of the level of participation.

Also, the participation angle is an odd criterion. If one actively goes along with an act that one cannot have been forced to do said act? That seems to contradict the point that coercive techniques equal forcible assault since one of the main goals of coercion is to gain active participation from the coerced.

Coercion invalidates any seeming concent there may be, but the absence of coercion does not create concent. The five billion or so people on this planet whom I have never coerced are not all consenting to have sex with me. Neither have the much smaller number of uncoerced people who, like the girl in the scenario, have unambiguously expressed their non-consent.

A’s response to B’s actions proves the nature of B’s actions. Is that a general rule?

Me:

There’s no “proof” of anyone’s actions, because this is only a hypothetical situation, and A and B don’t really exist.

otterick:

So, you’ve concluded that a nonexistent person has been raped. I thought that hypotheticals involved pretending that a scenario is real so we can better understand fine points and develop rules of general application. I’m pretty sure this wasn’t meant as a semantics game.

Of course hypotheticals involve pretending that a scenario is real so we can better understand them. However hypotheticals allow us to shortcut certain considerations, such as how we could know whether things happened as stated, or whether the might have happened differently from stated. The nature of B’s actions are as told to us by Biting Beaver. She can’t be misrepresenting B because there’s no real B whose actions could have been misrepresented in the scenario.

Small wonder you’d conclude that since the writer imbued the girl with thoughts, feelings and circumstances. The boy, on the other hand, is portrayed as a monomaniacal testosterone-driven automaton. How hard would it be to fill in the boy’s character so that he becomes a real person? How about if we make him Daran? You seem like a decent guy.

You can fill it in how you like. My assement is not based upon his character. But if you’re going to involve me, then you have a problem in that I can compare any purported facts you might want to introduce with reality.

So, let’s fill out Daran without contradicting the details of the story or doing so in the slightest bad faith. For example, I could say that he actually offered her a ride home without contradicting the story but that would be in bad faith; she wondered how she could get home which implies he didn’t make such an offer. However, apparently she never asked him which means he might very well have obliged if she had. That is an assumption that is consistent with the story and is made in good faith.

No I don’t think it is. He’s disregarded her wishes with respect to her zipper. Why should he comply with her wishes in any other respect?

In any case, my analysis doesn’t depend upon whether he would have taken her home if asked. It depends upon whether she consented to intercourse.

The story doesn’t say he knew of her dilemma with her parents and if she’s kept the situation with the boyfriend secret from her parents she might very well have the situation with her parent secret from her boyfriend.

Again, my analysis doesn’t depend upon whether he knows this or not. It depends upon whether she consented to intercourse.

In short, the boy doesn’t know of the girl’s immobility. This is you Daran. Had you known would you have given her a ride home? If yes, why do you believe the boy wouldn’t have?

What makes you think I don’t believe the boy wouldn’t have? I haven’t said anything to that effect.

If it had been me, and I hadn’t been drinking, then of course I would have given her a ride. But if it had been me, then there’s no way I would have touched her sexually after the first rebuff. I take ‘no’ for an answer.

We may reasonably assume from the story that these two are very young – maybe 15 or 16. They are quite possibly virgins. They are boyfriend and girlfriend so they’ve been together awhile.

Obviously not me then, because neither of those descriptions fit me.

Daran has long made it clear to her that he considers sex as a part of a complete relationship. She keeps saying “I’m not ready.” Daran is torn. He loves the girl, and always will, but he’s thinking more and more that there might be a girl out that he will love who will have sex with him.

I can certainly imagine being torn like that, but then the choices would be leave her, despite being in love, or stay with her and put up with an incomplete relationship. Raping her would not be an option in my mind. Nor would pressuring her into reluctant-but-consensual sex.

Daran scoots to the end of the couch. The girl accuses him of emotionally blackmailing her and this angers Daran. In the first place he moved to the end of the couch because he’s becoming overly aroused and in the second place, her statement implies that she’s entitled to his affections entirely on her terms.

Now you’re changing the scenario. Not good faith.

In a flash of anger and frustration she stands up to leave. He grabs her arm, “Oh baby, I’m sorry, I didn’t mean to make you mad” he says. He looks at her again and quickly it goes through his mind that she’s the one emotionally blackmailing him. He sheepishly returns to her end of the couch.

If I felt I was being emotionally blackmailed, she would be out of the door. I’d offer her a lift home, but one way or another she’d be gone.

They roll on the couch and she gives in. To Daran it appears that she consented. He’s heard that girls take longer to get aroused so an hour seems normal. She looks a little scared but he’s very scared, too.

Like I said, I wouldn’t touch her sexually after a rebuff.

The next day Daran is troubled, depressed, and unable to concentrate. He pressured his girlfriend so that he could have 12 seconds of pleasure.

That would never happen. For a start, I last a lot longer than 12 seconds. 🙂 Secondly there is continual dialogue between myself and my partner. I watch her face, feel how she moves, talk to her, listen to her. When I have sex, there is always communication, and participation from both sides.

Will she still love him? In optimistic moments he smiles and thinks that with a little practice the sex will get better and he and his girlfriend will grow closer than ever.

Then the cops knock on Daran’s door.

Also a bad-faith assumption. She doesn’t want her parents to know, remember? So she couldn’t go to the cops because they’d find out.

In summary, you’ve not presented the same scenario. You’ve presented a superficially similar one and attached my name to it.

The key distinction here is that the employee does something, while there is nothing to indicate that the girl in the scenario does anything rather she is done to.

There is not anything in the scenario indicating that the girl does nothing, either. Being such, since your position is explicitly tied to her level of participation (i.e. her “consent”), which is unknown, there is no way you can determine whether or not she was raped. (Her unwillingness is irrelevant since it is her participation that determines whether or not she consented)

One should note that if the girl literally does nothing, then there is a potential legal basis to charge the boy with rape since the girl neither approved nor disapproved of the act. Legally speaking, if she is incapable of consenting or rejecting (such as her being in a state of shock) the advances, the act is automatically rape (depending on the state laws).

Other people are vague and imprecise means I can’t be clear and precise?

No, you can be as clear and precise as you want. That does not mean we should accept your definition as the definition, nor should we accept mines either. My point is that if we cannot agree on what does or does not constitute consent, how can we label this boy a rapist?

Coercion invalidates any seeming concent there may be*, but the absence of coercion does not create concent.

*bolds are mines

For the sake of clarification, are you saying coercion invalidates any decision one makes? If so, then the level of participation in the act following the coercion is irrelevant. If not, what meaning of invalidate are you using? Also, if consent is defined as “a positive idea” making “a definite decision” to engage in [a] particular […] act, we must accept that no one can participate in an act unwillingly since participation (of any kind) = consent. In other words, even if you are unwilling to do an act, the fact that you did it means that you actually consented.

Well, Daran, we seem to be talking past each other. You are really quite the literalist and from my point of view, your literalism has gotten you all tangled up in your web of semantics.

Words don’t rape. People do. You and I weren’t there to witness this event; only the writer was and we have only her words to go on. You’ve based your argument around a fine parsing of “consent” and “giving in” but the actual distinction is relevant only if the writer went to the same effort. How likely is that considering she wrote this: “maybe even scooting to the end of the couch.”

The word “even” in this context means “a possibility that constitutes an extreme case or an unlikely instance.” She doesn’t know whether something happened in HER OWN hypothetical but she knows it’s important if it did. And you base your case around fine distinctions in writing as sloppy as hers?

You’ve gotten so caught up in your narcissistic game of semantics that you’ve failed to notice that you’ve stripped the word rape of all its power and force. Rape is now nothing more horrific than mommy being angry at her daughter. Somehow, I don’t think this makes the world a better place.

I say that IF in the BB scenario she just lay back like a wet fish without expressing any kind of positive idea or definite decision, then it’s rape.

You appear to be saying that EVEN IF that’s all she did, then it isn’t rape, because, you know, looking at your partner every now and again to check whether she really is digging it is just too much to ask of our poor sexually frustrated young men.

Meanwhile, getting into some big argument over whether she really did lie back like a wet fish, or whether he really did scoot over to the other end of the couch seems rather pointless because this is an illustrative example, and the entire event really did not happen at all.

Can we move onto more substantial issues, such as how many angels really do dance on the end of a pin?

You’ve gotten so caught up in your narcissistic game of semantics that you’ve failed to notice that you’ve stripped the word rape of all its power and force. Rape is now nothing more horrific than mommy being angry at her daughter. Somehow, I don’t think this makes the world a better place.

That’s the other horn of the dilemma you presented us with. I don’t agree that it’s trivial, but I haven’t discussed the reasons for my position.

But let’s suppose you’re right. It’s not such a bad experience for the girl because she chooses it in preference to relatively trivial problem of having to face her parents. You argue that this means it’s not rape.

In other words, whether or not its rape depends upon how she feels.

However if a women were to charge a man with rape after apparently consensual sex, and the only evidence she offered was that she really, really, really felt bad about it, you’d be outraged. You’d be demanding that we judge the incident based on what he did to her, and not on how she feels about it.

Her unwillingness is irrelevant since it is her participation that determines whether or not she consented

If by “unwillingness” you mean her internal mental state, then no, we cannot oblige someone to act or refrain from acting based upon the mental states of other people they have no access to.

If by “unwillingness” you’re refering to her earlier expressed unwillingness, then it’s relevent. However any subsequent participation in the act may contradict that expression.

One should note that if the girl literally does nothing, then there is a potential legal basis to charge the boy with rape since the girl neither approved nor disapproved of the act.

She’s already disapproved. If I prohibit an action, the prohibition doesn’t cease the moment I finish speaking. The same is true if I permit an action.

Legally speaking, if she is incapable of consenting or rejecting (such as her being in a state of shock) the advances, the act is automatically rape (depending on the state laws).

I’m assuming she’s capable.

No, you can be as clear and precise as you want. That does not mean we should accept your definition as the definition, nor should we accept mines either. My point is that if we cannot agree on what does or does not constitute consent, how can we label this boy a rapist?

Do you disagree with it? If so, then how do you define consent?

For the sake of clarification, are you saying coercion invalidates any decision one makes?

See the fourth point. Coercion invalidates a decision to consent if that decision depended upon the coercion

If so, then the level of participation in the act following the coercion is irrelevant.

It may be relevent to the inquiry into whether the decision depended upon the coercion or not. Ditto the level of coercion.

If not, what meaning of invalidate are you using? Also, if consent is defined as “a positive idea” making “a definite decision” to engage in [a] particular […] act, we must accept that no one can participate in an act unwillingly since participation (of any kind) = consent. In other words, even if you are unwilling to do an act, the fact that you did it means that you actually consented.

“Invalidate” means that it is nonconsensual. If the person doesn’t participate then it is non-consensual. If the person is coerced, and the participation depends upon the coercion, then it is non-consensual. If the person is incapable of consenting, i.e. incapable of understanding the nature of the act or incapable of independent action, then it is non-consensual.

If these characteristics do not apply, then I cannot see how participation in the act does not express willingness. We can hypothesise internal mental states to the contrary, but I can’t see how they can be anything other than hypothetical.

Daran said:But let’s suppose you’re right. It’s not such a bad experience for the girl because she chooses it in preference to relatively trivial problem of having to face her parents. You argue that this means it’s not rape.

In other words, whether or not its rape depends upon how she feels.(bolding mine)

Actually, I think they are arguing that it’s not rape because she had a choice. Indeed, the presence or absence of choice seems to be what consent is about. The criterion for how I have been defining rape in the past would look something like this: nonconsensual sex (i.e. rape) is sex where the element of choice has been effectively removed. And I say “in the past” because I am not sure whether I am still committed to it after reading Daran’s arguments, but I will spell it out anyway because it may be the kind of criterion that toysoldier and otterick are using also…

For a start, let say that it’s rape when a man has sex with a woman who has no choice whether he penetrates her or not. This is too narrow, because it doesn’t include situations where the woman has a choice, but will suffer punishment or potential punishment from the male if she chooses to resist him in that manner. For example, a woman can always choose to fight more vigorously to try to get him to stop, but that might be even more dangerous for her.

So let’s rephrase the criterion: It’s rape when a man has sex with a woman who has no choice whether he penetrates her or not, or when she knows he will punish her for making the choice to resist. Now it’s either too broad, or too vague. What if the guy threatens to break up with her, or throw her out of his house if she doesn’t have sex with him? She may construe that as “punishment.” Yet since she is not entitled to a relationship with him, he has the right to end it at any time and for any reason. (I am spelling this point out, as I did in a previous post, because there are feminists who say that it’s date rape if a guy threatens to break up with a woman for not having sex with him.) To narrow it down, “punishment” should only include the man doing something that he has no right to do, like hurting her, firing her if he is her boss, threatening her family, etc…

The rephrased criterion: It’s rape when a man has sex with a woman who has no choice whether he penetrates her or not, or when she knows he will punish her for making the choice to resist by doing something else to her that he has no right to do.

According to this criterion, the situation under discussion would not qualify as rape. As far as we can tell, the worst the girl is worried about is being kicked out, or facing the wrath of her parents. Since there is no evidence in the scenario that he knows about her parents potential wrath, we can’t say that he threatened her with it. If indeed he bruised her arm and restrained her, then there would be a threat of violence, which would make it rape, but we can’t consider those things as part of the scenario.

What it comes down to is that she could have gotten up off the couch, and left, tried to call her parents, or asked to be taken home. I think that is what many guys reading the scenario will have trouble wrapping their heads around. Of course, maybe none of those things would have worked. Maybe the boyfriend would have grabbed her arm again, or maybe not. Maybe he would have prevented her from leaving, or from calling home, but we have no reason to believe that she thought that would happen. In the end, she could have chosen a course of action to try to avoid him penetrating her, so it was not rape because her element of choice was not removed.

Of course, this conclusion is contingent on accepting my definition of consensual sex for a woman as “being penetrated when she had a realistic choice not to be.” What makes this definition better than Daran’s definition of consent as requiring some form of active agreement? I can’t answer that, because I am not sure my definition is better; there seems to be room in the word “consent” for both definitions.

I think it’s fair to say that being penetrated without having any viable choice not to be (rape by my definition) is worse than being penetrated without having communicated agreement that it was ok (rape by Daran’s broader definition). In other words, if the guy in this example had eliminated the woman’s options of getting up off the couch, or walking out the door, or calling home, his actions would have been much more reprehensible (and yes, Daran, I do think they were reprehensible in the first place, of course). There is definitively a line between this modified scenario (which would be rape by both Daran and my definitions) and the original scenario (which would be rape only by Daran’s definition). The question is whether that line is the line between “rape” and “not rape,” or between one type of rape and a worse type of rape.

I took the liberty of fixing your markup, so that it’s clear that the second paragraph was mine. (Italics don’t extend past the end of a paragraph.)

Aegis:

But let’s suppose you’re right. It’s not such a bad experience for the girl because she chooses it in preference to relatively trivial problem of having to face her parents. You argue that this means it’s not rape.

In other words, whether or not its rape depends upon how she feels.(bolding mine)

Actually, I think they are arguing that it’s not rape because she had a choice.

They had been, up to this point, but I was specifically responding to otterick’s remark “Rape is now nothing more horrific than mommy being angry at her daughter.”

Indeed, the presence or absence of choice seems to be what consent is about. The criterion for how I have been defining rape in the past would look something like this: nonconsensual sex (i.e. rape) is sex where the element of choice has been effectively removed. And I say “in the past” because I am not sure whether I am still committed to it after reading Daran’s arguments, but I will spell it out anyway because it may be the kind of criterion that toysoldier and otterick are using also…

I long ago noticed that there are, in fact two distinct definitions of rape: One is forced sex; the other is non-consensual sex, and although there is a lot of overlap between the two, they are not the same, and occasionally there are situations which meets one definition and not the other.

Likewise legal definitions differ between jurisdictions. Some adopt a “force” definition, others a “consent” definition, still others something in between or a blend of the two.

I do not agree, however that “the presence or absence of choice seems to be what consent is about.” Suppose instead of lying like a wet fish, the girl repeatedly says no and pushes ineffectively (because he’s too heavy) against him. Suppose further that she was aware that she is free to leave, either before the act starts, or periodically during it, but will be unable to resist if she remains. Nevertheless she chooses to remain.

Clearly she has a choice. But I think it’s bending the meaning of “consent” beyond recognition to describe someone who is saying “no” (and meaning it) and pushing against him as hard as she can as “consenting”.

Of course, this conclusion is contingent on accepting my definition of consensual sex for a woman as “being penetrated when she had a realistic choice not to be.” What makes this definition better than Daran’s definition of consent as requiring some form of active agreement? I can’t answer that, because I am not sure my definition is better; there seems to be room in the word “consent” for both definitions.

Can I suggest that a good definition would be one that includes as much of what we would want to criminalise as possible, but excludes everything that we would definitely not want to criminalise.

The disputed category of activity, where the putative victim has choices that do not involved the loss of any right, but has not communicated agreement includes some scenarios I’d like to see criminalised, and a whole lot of arseholry that I don’t mind seeing criminalised, and nothing I definitely do not want to be criminalised. Any further expansion (such as calling it rape if she turns round and says “OK let’s do it” to avoid being escorted to the door) starts to encroach upon his rights (such as the right to evict unwelcome guests from his home).

There is a second category of disputed activities – those which meet your definition but not mine. For example consider a person who agrees to engage in no-safeword rape-play. That’s probably a very bad idea in most cases, but it’s not something I would choose to criminalise.

I think it’s fair to say that being penetrated without having any viable choice not to be (rape by my definition) is worse than being penetrated without having communicated agreement that it was ok (rape by Daran’s broader definition). In other words, if the guy in this example had eliminated the woman’s options of getting up off the couch, or walking out the door, or calling home, his actions would have been much more reprehensible (and yes, Daran, I do think they were reprehensible in the first place, of course).

Suppose a boss threatens to fire an employee (who desparately needs the job) over a relatively minor disciplinary infraction, but nevertheless one sufficient to give him cause. Is this really not as bad as as another employee threatening to steal their pencil?

It may be relevant to the inquiry into whether the decision depended upon the coercion or not.

On basis would one make that determination though? Who gets to make the decision: the boy or the girl? Obviously both would have reason to misrepresent the truth.

“Invalidate” means that it is nonconsensual.

Okay… That is the first time I have seen “invalidate” used to describe a state of consent. But I did ask, so thank you for the explanation.

If the person is coerced, and the participation depends upon the coercion, then it is non-consensual.

Now you are changing your criteria for consent. When I presented the example of the man pressured into working overtime and suggested that he has been enslaved, you stated, “No, he “expresses a positive idea” by actually doing the work.” Even though my point was that his participation resulted from pressuring/coercion, you dismissed it since he “did something.” So which one is it, because it cannot be both? Is consent dependant on the level of participation or it is dependant on whether participation results from pressuring and/or coercion* (the two are not the same)?
* If this is true, then the man in my example has been enslaved.

But I think it’s bending the meaning of “consent” beyond recognition to describe someone who is saying “no” (and meaning it) and pushing against him as hard as she can as “consenting”.

That is a strawman. I do not believe anyone suggested that. What has been suggested is that if she had opportunity to leave (she did), was under no real threat (she was not) and willingly–meaning she did so without force– had sex (she did), then she has not been raped. The simplest means of understanding this position is to reverse the situation. I do not believe anyone would consider that rape, nor could they refrain from giggling even if there was twenty-year age difference.

[The level of participation in the act following the coercion] may be relevant to the inquiry into whether the decision depended upon the coercion or not.

toysoldier:

On basis would one make that determination though? Who gets to make the decision: the boy or the girl? Obviously both would have reason to misrepresent the truth.

For someone who objects to the gender-norm that casts females in the (alleged) victim role and males in the (alledged) perp role, you seem to be working very hard to reinforced that norm.

Since it is an inquiry into the alledged victim’s state of mind, only the alledged victim can testify about that directly. Other considerations are the nature and degree of the coercion and the nature and degree of the participation.

Bare in mind that this analysis is only applicable when coersion has been shown.

Me:

Now you are changing your criteria for consent. When I presented the example of the man pressured into working overtime and suggested that he has been enslaved, you stated, “No, he “expresses a positive idea” by actually doing the work.” Even though my point was that his participation resulted from pressuring/coercion, you dismissed it since he “did something.” So which one is it, because it cannot be both? Is consent dependant on the level of participation or it is dependant on whether participation results from pressuring and/or coercion* (the two are not the same)?
* If this is true, then the man in my example has been enslaved.

Yes it can be both. If there is no expression of a “positive idea” etc., (by participation, or in some other way) then there is no consent. If there is such an expression, then we need to determine whether this was secured by coercion.

You offered your “man pressured into working overtime” example as an analogy with the Biting Beaver scenario, in which we have agreed there was no coersion, i.e., that the pressure did involve any (threatened) violation of the girl’s rights. I therefore assumed that the pressure faced by the man in your scenario was similar. If, on the contrary, it involved a (threatened) violation of the man’s rights, (a threat to terminate without cause, for example) and if the man would not have worked overtime absent that threat, then yes, I would agree that it was non-consensual.

Suppose instead of lying like a wet fish, the girl repeatedly says no and pushes ineffectively (because he’s too heavy) against him. Suppose further that she was aware that she is free to leave, either before the act starts, or periodically during it, but will be unable to resist if she remains. Nevertheless she chooses to remain.

But I think it’s bending the meaning of “consent” beyond recognition to describe someone who is saying “no” (and meaning it) and pushing against him as hard as she can as “consenting”.

toysoldier:

That is a strawman. I do not believe anyone suggested that.

Look again at the scenario I posed. She had the opportunity to leave. She was under no real threat. According to Aegis “the presence or absence of choice seems to be what consent is about.” I do not see how to construe that as asserting anything other than that she is consenting, despite the fact that she is pushing against the boy and saying “no”.

Of course I don’t really believe that Aegis would call this consensual. My intention was to refute his statement by exhibiting a possible situation he had probably not considered.

The simplest means of understanding this position is to reverse the situation. I do not believe anyone would consider that rape, nor could they refrain from giggling even if there was twenty-year age difference.

If a female, of any age, had penatrative (or enclosive) sex with a male, of any age, without the male having expressed a “positive idea” etc., by participating or otherwise, then yes, I would call it rape. And I wouldn’t giggle.

Daran said:I do not agree, however that “the presence or absence of choice seems to be what consent is about.” Suppose instead of lying like a wet fish, the girl repeatedly says no and pushes ineffectively (because he’s too heavy) against him. Suppose further that she was aware that she is free to leave, either before the act starts, or periodically during it, but will be unable to resist if she remains. Nevertheless she chooses to remain.

Wait a sec, this seems a bit contradictory. If she can’t get him off her, then she isn’t really free to leave, so we can’t say that she “chooses” to remain. If she has to exercise force to get her “freedom,” I wouldn’t really call it “freedom.”

But I think it’s bending the meaning of “consent” beyond recognition to describe someone who is saying “no” (and meaning it) and pushing against him as hard as she can as “consenting”.

You present this as a possible counterexample to my interpretation that consent is about choice. First, I want to point out that the scenario you are outlining above seems critically different from the original scenario that I was talking about. I didn’t see anything in the the original scenario to suggest that she was pinned down under his weight. I was assuming that she could have gotten out from under him without resorting to force if she wanted to.

But let’s go with your alternative scenario for a minute, and see whether or not it would be rape by my criterion. I think it would be, but this may not be obvious from the wording of my last post (though I think it is in the spirit of my argument).

The main idea of my argument was that a sexual situation is rape if the women couldn’t have a chosen a realistic course of action to extricate herself from that situation or end it. If the guy’s weight is on top of the woman, and she “is saying ‘no’ (and meaning it) and pushing against him as hard as she can,” I think that would clearly be rape by my criterion because her choice to end the altercation has been removed.

Yet I see that this wasn’t spelled out as clearly as it could have been in my previous post, where I said:

The rephrased criterion: It’s rape when a man has sex with a woman who has no choice whether he penetrates her or not, or when she knows he will punish her for making the choice to resist by doing something else to her that he has no right to do.

Spelled out like this, I agree that it’s not clear why your scenario would be rape. Though I also said:

If indeed he bruised her arm and restrained her, then there would be a threat of violence, which would make it rape, but we can’t consider those things as part of the scenario.

In your scenario, the guy pinning down the woman physically would be analogous to him restraining her, and could be considered to be a threat of violence if she was asking him to get off or trying to push him off fruitlessly. Clearly though, I missed something in my criterion. It should not only require that the woman not have to fear violence/force/reprisal from the man for exercising her choice to extricate herself from the situation, it should also require that she not have to use force or violence herself to get him to stop.

If the woman has to throw the guy off physically to avoid the sex, and other methods (like asking him or pushing him gently) failed, then it was attempted rape (or sexual assault, depending on how far he was going) even if she doesn’t fear reprisals from him. (I suppose that likewise, if a woman had to, say… threaten a guy’s family in order to get him to stop trying to have sex with her, his actions were probably potential rape or sexual assault.)

So if there are problems with my criterion for consent as depending on the “realistic” (i.e. non-violent, non-fearing of unjust reprisal for both parties) exercise of choice, this specific argument you provide does not appear to be one of them (though I am hardly committed to the criterion, and I will respond to your other arguments against it later).

P.S. And I will email you soon; just been really busy with school/work…

There’s a huge difference between rape and the case cited above where she was pressured to have sex.

You do not have a right to be in somebody else’s house or a right to be somebody’s boyfriend/girlfriend, so threatening to remove either of these things is not rape. They could remove those things for no reason if they wanted to. If anything it’s morally equivalent to prostitution, because he is offering to give you something (continuing to be your boyfriend and continuing to allow you to come over to his house) in exchange for sex. Even threatening a person with being fired or demoted for not having sex isn’t rape. It is sexual harrassment, and is rightfully illegal but not rape.

You do have a right to be free from physical harm, so threatening somebody with physical harm is rape.

[…] when engaging with other people sexually, and that consent by definition is an expression which conveys an active and positive idea; it implies making a definite decision to comply. The mere absence of words or behaviour which express dissent to the act is not sufficient to […]